An Audit of Exceptional Contracting Limits Authority was included in Aboriginal Affairs and Northern Development Canada's (AANDC) revised 2014-2015 to 2016-2017 Risk-Based Audit Plan, approved by the Minister on September 26, 2014. The audit is a condition of the Treasury Board Secretariat requiring the Department to conduct an audit of Exceptional Contracting Limits Authority (ECLA) on a three-year cyclical basis. An internal audit of ECLA was conducted in August 2011.
Treasury Board, under the authority vested by the Governor in Council, is responsible to delegate the limits of contracting authority to federal government departments and agencies. These thresholds of contracting authority are set out in the Treasury Board Contracts Directive which is set out in the three parts:
- Basic Contract Limits – provided to AANDC, dependent on whether the contract is awarded as a result of an electronic bidding process, a traditional competitive process or on a non-competitive basis;
- Emergency Contracting Limits – set at $1,000,000 to enable departments and agencies to award and amend a contract for emergency purposes where public health, safety or security is at risk; and,
- Exceptional Contracting Limits Authority – authorized by Treasury Board upon request from individual departments and agencies that need "exceptional" contracting authority to meet special operational requirements that cannot be met by using the "basic" contracting limits.
Treasury Board approved a submission from the Minister of AANDC for an ECLA in 2002 to enter into and renew non-competitiveFootnote 1 contracts with: Chief Federal Negotiators (CFN) for claims, litigation and self-government negotiations; Crown deponents (CD), and expert witnesses (EW); and, water board activities in three territories. The ECLA is renewed on a five-year basis and was extended by Treasury Board on March 15, 2012. The current ECLA expires on March 31, 2017.
With respect to the ECLA, the Minister, AANDC has the authority to:
- enter into and amend non-competitive contracts up to a cumulative total value of $1,500,000 for the duration of a contract for Chief Federal Negotiators/Representatives. Entry level approval limit to a maximum of $500,000; amendments not to exceed $500,000 in a 12-month period; and fees for professional services not exceed $250,000;
- enter into and amend service contracts for the services of crown deponents and expert witnesses for AANDC litigation up to total cumulative value of $600,000; and,
- enter into and amend service contracts of Crown Deponents (CD) and Expert Witnesses (EW) for AANDC litigation who are former public servants in receipt of a pension, up to a total cumulative value of $225,000, with the following condition: entry level authority limit to a maximum amount of $150,000, each amendment not exceed $75,000, and all contracts much be subject to the application of the Treasury Board Contracting Policy with regards to the application of the fee abatement formula.
The Treasury Board directed AANDC to undertake a comprehensive audit of the ECLA on three-year cyclical basis and to undertake an annual review of the status of negotiations and the performance of Chief Federal Negotiators/Representatives under the ECLA and to submit reports to the Treasury Board Secretariat.
Within AANDC, the Treaties and Aboriginal Government (TAG) Sector is the lead sector for ECLA. The Sector is responsible for providing guidance and advice and coordinating all departmental requests for CFN appointments, renewals and amendments to appointments, and monitoring the related approval limits under this authority. The Litigation Management and Resolution Branch (LMRB) in the Policy and Strategic Direction Sector has the responsibility for coordinating the nomination of EWs and CDs pursuant to the ECLA for AANDC. This Branch/Sector is also responsible to implement and coordinate all contracts of EWs and CDs.
A separate AANDC contracting unit with the Chief Financial Officer Sector, Materiel and Assets Management Directorate, is responsible for procurement activities in the National Capital Region and Eastern Canada (Northwest Territories, Nunavut, Ontario, Quebec and Atlantic) and reports through the Director General of Corporate Accounting and Materiel Management. For Yukon, British Columbia, Alberta, Saskatchewan and Manitoba, contracts are under the responsibility of British Columbia Corporate Services, who reports to the British Columbia Region, under Regional Operations.
Organizationally, under AANDC's Program Activity Architecture, the ECLA is categorized under The Government Strategic Outcome within the Negotiations of Claims and Self-Government Agreements sub-program, under Aboriginal Rights and Interests Program.
Between April 1, 2011 and March 31, 2014, approximately $16M was contracted using the ECLA.